The evening of July 18, 1985 was pleasant. A seventeen year old girl was out with a group of her friends in her neighborhood. She decided that she wanted to get her bicycle from one of her friend’s patios. In order to get to the patio, the girl had to go through a yard area belonging to her friend’s father. As the teens cut through the yard, the girl noticed a dog chained there. She stated that she approached the dog to pet it and show it that she was friendly.
While she was petting the dog, her friend who lived there began arguing with one of the other teens in the group. The dog started to react to the agitation in the group and began to bark. The girl had been bent down petting the dog, when she began to stand; the dog attacked her and bit her in the face. It was later pointed out to her that the family had a posted “Beware of Dog” sign on their fence. However, it was not placed in an area where it could be seen from the position of where the dog was chained.
In the state of New York, a dog can be described as vicious even if the current case is the first time that the dog has ever bitten anyone. That is “if” the complainant can show that the dog had exhibited signs of being vicious short of actually biting anyone prior to the dog bite that is in question. Some of the signs that the dog could exhibit to demonstrate viciousness would be growling at people, snarling at people, or just showing its teeth in an aggressive manner in the presence of people. Of course, a previous incident of actual biting is demonstrative of viciousness as well. Some other indicators that the Court will take in to account are things like a “Beware of Dog” sign. A “Beware of Dog” sign demonstrates a certain knowledge of the dog owner that his or her dog is likely to be vicious even if it has never bitten anyone before.
However, the question of culpable conduct comes in to play in this case. The dog was chained and inside its own property line. Further, there was a “Beware of Dog” sign posted on the property in spite of the fact that a person standing with the dog would have been unable to see the sign. According to New York law, the amount of damages recoverable in an action to recover damages in a personal injury law suit must be reduced proportionately depending on the amount of culpable conduct that occurs at the time of the incident.
Culpable conduct is basically a merged concept combining contributory negligence and implied assumption of the risk. This means that if a person approaches a dog on a chain in its own yard with a sign above it that says that it is vicious; that person takes on most of the liability himself if he chooses to disregard all of the warnings and attempt to touch the dog.
However, in this case, it is not so clearly defined. Yes, the dog was on his own property. Yes, the dog was chained. Yes, there was a warning sign posted. But the victim was invited onto the property to retrieve her bicycle by the property owner’s son who was with her. Further, even though the dog owner’s son was present in the group of teen agers, no one mentioned to her that the dog was vicious prior to her approaching the dog where it was chained. In the precedent cases used to evaluate culpable conduct, the cases have usually been limited to cases where the victim has placed him or herself in “harm’s way with the knowledge of the dog’s vicious propensities.” This is according to the landmark case of Graham v. Murphy 135 AD 2d 326, 525 NYS 2d 414.
The differences in this situation are obvious. The teen aged girl did not provoke the dog. Everyone involved is in agreement in that regard. Also, uncontested is the fact that the girl had no knowledge of the dogs propensity to be vicious. Therefore, upon appeal of the trial court’s decision it was found that the trial court was correct in not charging that the girl was culpable in her conduct either by negligence or wanton disregard of the animal’s condition.
On April 14, 1988, the Supreme Court of Nassau County officiated by Judge Becker and held in front of a jury, placed a verdict that the owners of the dog should pay the girl the principle sum of $150,000. The dog owners appealed this decision. On appeal, the Honorable Justices were not unanimous in their verdict. The majority agreed that the trial court made a mistake by not offering the doctrine of comparative negligence to the jury. They felt that a comparative negligence charge should have been given. At trial, an implied assumption of the risk was offered, but the evidence presented at the trial was not sufficient to support that defense. The majority of the Honorable Justices concurred with the decision to conclude that the “trial court properly excluded a photograph of the victim from evidence, as the dog owner failed to lay an adequate foundation for its introduction. Thus, the majority of Justices find that the verdict from the original trial should be reversed and a new trial ordered.
Only one Justice did not agree with the decision held by the other justices. Justice Spatt disagrees with the majority and votes to affirm the judgment and award the $150,000 to the victim. He explains his opinion by stating that he did not feel that there was any evidence of culpable conduct by the victim in any of the documents that they were provided for review. He states with no evidence of culpable conduct, the original trial court behaved properly when they did not present the charge of comparative negligence to the jury. He does not believe that the decision to reverse and grant a new trial is reasonable.
In light of this, the original trial decision will be set aside and a new trial will be held to determine if the victim caused her own injuries. If she did then she is not entitled to any compensation. If she did not, then she may yet be awarded the $150,000 that was originally awarded to her.
Stephen Bilkis & Associates with its New York Dog Bite Lawyers has convenient offices throughout the New York Metropolitan area including Corona, New York. Our New York Personal Injury Attorneys can provide you with advice to guide you through difficult situations. Without a New York Dog Bite Injury Attorney you could lose precious compensation to help with your medical bills and the trauma to you and your loved ones following such a frightening experience. This is true even if the Attorney for the dog owner has not adequately made its case. In addition to Personal Injury Law, Stephen Bilkis and Associates can recommend New York Criminal Lawyers who will protect your rights if you are ever arrested.
Here at Steven Bilkis and Associates, we provide New York Dog Bite Injury Attorneys, New York Injury Lawyers, New York Personal Injury Lawyers and New York Dog Bite Lawyers. Being attacked by a vicious dog can have devastating effects on you and your family members. New York Dog Bite Injury Attorneys will stand by you and ensure that your rights are protected. New York Personal Injury Attorneys can argue your side and make sure that you and your loved ones are considered. We make sure that you are rightfully awarded compensation for your suffering.